from the glass-houses dept

Regular Techdirt readers, as well as fans of hip-hop and/or Gnarls Barkley, will be familiar with Danger Mouse, the highly respected producer who operates well outside of copyright law. He's perhaps most famous for The Grey Album—a mashup of Jay-Z and The Beatles (praised by the original artists) that sparked EMI to go on a copyright rampage, in turn leading to the Grey Tuesday movement that made the album one of the most popular bootlegs ever, until EMI eventually gave up. Later, he released an album to stores as a blank CD-R with artwork and liner notes while hinting that fans should find the music itself "by whatever means", since he knew there was no way he could legally sell it. Danger Mouse is one of the perfect examples of how copyright is interfering with culture and creativity in very real ways, contrary to its supposed goals.

Patrick Carney and Daniel Auerbach, known as the Black Keys, sued Home Depot for the unauthorized use of “Lonely Boy,” and sued Pizza Hut and its advertising company, Interpublic Group of Cos., over “Gold on the Ceiling,” in separate filings yesterday in federal court in Los Angeles.
The group said Pizza Hut and its ad agency created a commercial for a product called Cheesy Bites Pizza that “prominently features significant portions” of “Gold on the Ceiling.” Home Depot ran a commercial for its Ryobi brand of power tools that uses parts of “Lonely Boy,” the band said.

...

Also suing the companies is co-writer Brian Burton, known professionally as Danger Mouse. The plaintiffs asked for jury trials of the copyright-infringement suits.

Now, obviously there are a few key differences here. The in-depth remix work of artists like Danger Mouse has a strong transformative fair use argument that remains mostly untested in court, while the same cannot really be said for Home Depot and Pizza Hut commercials. Moreover, while it would not have been prohibitive for these big companies to seek a license, it was pretty much impossible for Danger Mouse to release his work legally. And, generally speaking, a lot of people are going to find it easier to support a person who defies copyright for the sake of art than a company that defies it for the sake of a commercial.

Nevertheless, I think this is a pretty bad move on Danger Mouse's part, and an unimpressive one. He's likely to face a lot more copyright issues in his career—as are artists he's inspired with his incredibly popular, but often infringing, work—and he'd be in a much better position to fight them if he could show that he never went after anyone with his own copyrights. There are much better ways to deal with a situation like this. It's the sort of thing the internet pays attention to, and if he had simply been open, human and awesome in informing people about what happened, it's likely that his supporters would have mobilized, and pretty soon the companies would be banging down his door in the hopes of reaching an agreement and shaking hands in public. Hell, he probably could have remixed the commercials and made something infinitely cooler, spreading his message that way and making the companies look silly. By going the legal route, he comes off as somewhat hypocritical, despite the differences between the situations.

A lot of people think, because we generally oppose the aggressive enforcement of copyright here at Techdirt, that we think any and all copying should run rampant. But that's not true. If someone is being genuinely "exploited" (a favorite term of copyright maximalists), then there are ways to address that—and the best one is by letting the public decide. Social pressure is an incredibly powerful thing, and employing it before running to the courts allows these situations to be resolved in much more natural ways that actually reflect the development of our shared, public culture. Sure, sometimes you run up against an intransigent Charles Carreon—but even then, you can apparently raise a bunch of money for charity and come out on top in the court of public opinion. Meanwhile, you leave the doors open to an amicable solution—maybe even one that creates new opportunities for both parties—which is a virtual impossibility once the legal nastygrams start flying.

The truly sad thing is...

...all the trolls who are gonna jump all over this and say: "See, even these people that you hold up as examples of free and open culture still believe in the ownership of their own works--even as they steal from the works of others". And sadly, in this case, I might have to agree with them.

Re: Re: The truly sad thing is...

YES: (Danger Mouse owes something to the original creators )
Maybe copyright should allow Danger Mouse to make and sell his wares that use other creators ingredients.
BUT he should have to pay a small percentage of the money he makes to the creators of those ingredients.
That seems fair, only pay on the profit he makes.

But copyright does not exist in that form.
You need permission. You have to pay an upfront fee that usually removes ALL remixes from ever existing at all.
Danger Mouse's wares would not exist if he didn't breach copyright.

Copyright is the problem, if it's form changed to allow Danger Mouse to produce AND the creators of the ingredients he used to also get payed a small percentage of profits, Danger Mouse would never have had to breach copyright in the first place.

Personally, I think copyright should be completely reworked into a workable form of exploitation preference (within reason) to the creator.
If someone does the exploitation better, then tough you have no choice BUT they still have to pay you. Eg.. torrent site has to give you a percentage of ad revenue for the pages your indexed on. If itunes does a better job exploiting, then so be it, but that does not mean monopoly time.

Anyway, you are right to be conflicted, it is a fucking mess of rules and monopolies, limitations and infringements.

Re: The truly sad thing is...

It doesn't really matter what side of the fence one is on, the reality is that hypocrisy and douchebaggery are an equal opportunity game that no one owns the exclusive rights to. After watching this debate for over a decade now, the conclusion I've come to is that nearly everyone involved thinks and acts like a selfish, spoiled two year old child whom believes the world revolves around them. It's not limited to just the copyright debate either. The really sad thing is that it never seems to improve, it just keeps getting worse making it hard not to feel as if the human race is utterly doomed.

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Why is enforcing a copyright bad in this situation?

Because the court of public opinion would have been much more effective in doing something the court system has trouble with--teaching those that do things like this that what they did was not a real good idea.

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They aren't necessarily exclusive each other, but the court of public opinion is a fickle thing. Thus it'd be best to simply tell your fans that you disapprove of this, as opposed to taking action that can be misconstrued as saying "I approve of copyright, but only when it's my copyright" and then going to your fans and saying "I disapprove of this", when they've also seen you fight copyright in the past.

Essentially using the court of public opinion and an actual legal court in this case is a good way to accidentally blow your own foot off.

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The court of public opinion is irrelevant unless your business relies on public opinion.
Has Charles Carreon not taught you that ?
That guy doesn't give a shit about public opinion.
(I understate that by a large factor)
Why should he ?, his battles are in law, not opinion.

Re:

Because I believe this situations can be resolved better without copyright. Because while this particular situation may seem clear-cut, that's not always going to be the case.

Danger Mouse does a lot of work on the principle that someone else's copyrights end when they begin to interfere with his creative expression. And we're all pretty much ready to write these commercials off as something less important than creative expression. Fair enough. But there's a dangerous slippery slope in the middle... what if it were one of those commercials that is done by a really talented artist, and they had chosen the song for creative reasons? what if the companies had remixed or covered the song instead of just using it? It seems unwise for Danger Mouse to endorse the notion of "I can stop you from using my work to make something else" at all - is he really prepared to start drawing lines in the sand?

Sure, we can all agree that a pizza commercial is less creative than a Danger Mouse song - but there will be other situations where agreement is not so simple. And, if the primary variable here is the creative and artistic value of the work on question, why not turn to the public and let them be the court? Much better then enforcing the notion that judges get to decide what's art and what isn't.

I think we have to take the artists' perspective into account. They surely wouldn't want their audience to think about pizza everytime their song is on. So there could be more to it than just filing for unpaid licensing money...

Re:

A better response would be to tell their audience directly that they didn't approve of this usage and let them take over punishing Pizza Hut and Home Depot--and let me tell you--a few million pissed of fans would give a much better conclusion to this than any court trial ever could. Plus they get to be the good guys as apposed to looking like the money grubbing trolls as they do now.

Commercials

I'm inclined to think that copyright should be strongly enforceable when it comes to a use in advertising for products and services, including even some moral rights that I would not generally agree with for some other purposes.

He's likely to face a lot more copyright issues in his career—as are artists he's inspired with his incredibly popular, but often infringing, work—and he'd be in a much better position to fight them if he could show that he never went after anyone with his own copyrights.

Re:

Nope. Those things don't matter in court.

I don't mean in court. In the future, as now, I am advocating dealing with copying outside of court first. I'm also an advocate of broader recognition of how copyright issues interfere with remix and sampling culture. For those things, it matters.

Re: Re:

Sampling is at an all time high. The effect of copyright law on sampling practice has been overstated. Most sampling cases have been defended by major label artists. What exactly would you change and why?

Meanwhile, small artists just have to hope nobody cares. Then you get artists like Kno from the CunninLynguists, who dislikes sample identification websites because they are likely to get him caught for some of the uncleared (and often unclearable) samples he uses. Or you have the many sample- and remix-based artists in Copyright Criminals, who speak out about how the law interferes with an important art form. There's the Beastie Boys getting sued for samples from albums that have been out for a quarter-century -- albums which estimates suggest would never, ever be released today because they would be too expensive to clear, and yet are considered to be some of the most important albums in modern music. There's companies like Bridgeport that exist only to buy up copyrights and sue samplers - they have no intention of creating new music or even promoting or selling or distributing the music they have bought the rights to; they just want to extract fees by suing new artists working on new things. They have sued hundreds of artists.

If that's not evidence of copyright interfering with sampling culture, I don't know what is.

Re: Re: Re: Re:

And nobody does care about the little artists -- except the little artists... if you took the time to understand the concept of "biting" in hip-hop culture, you'd learn that flipping a sample the same way as another artist is frowned upon, and the fact that some artists are stuck in obscurity while their music makes money for more popular samplers is, in some cases, a tragedy.

But then you have artists like Greg Gillis, who has not been sued. Dangermouse has not been sued. Bridgeport has been successful in suing, but only in the Sixth Circuit -- name one court outside that circuit that has adopted the reasoning of those decisions.

It's premature to think your definition of rightful copying is shared by the community. It's illeberal to think the law can't contribute to this discussion.

Re: Re: Re: Re: Re:

the fact that some artists are stuck in obscurity while their music makes money for more popular samplers is, in some cases, a tragedy.

...to be dealt with culturally, through the "frowning upon". That's my point. Do some people get screwed? Yes, but not as many as get screwed by copyright. Better to let the culture deal with it. As you say, the culture frowns on biting - in fact in can generate quite a shitstorm.

But then you have artists like Greg Gillis, who has not been sued. Dangermouse has not been sued.

And yet Greg Gillis is hardly a supporter of the way sample licensing works. And Dangermouse has not been sued, but he's had some of his most popular work blocked, with EMI attempting to keep it off the internet. Of course, EMI lost and the art won - why? Not because of the courts - because of the culture, and the social pressure pushing back.

Bridgeport has been successful in suing, but only in the Sixth Circuit -- name one court outside that circuit that has adopted the reasoning of those decisions.

And yet the Bridgeport ruling casts a large shadow. Everyone settles. Nobody tests it in court. "Get a license or do not sample" has become the effective rule for commercial work in the majority of cases - and those who violate it risk lawsuits. Jay-Z has been sued. Kanye West has been sued. 50 Cent has been sued. Beastie Boys just got sued.

It's premature to think your definition of rightful copying is shared by the community. It's illeberal to think the law can't contribute to this discussion.

Nevertheless, it's the definition I stand behind. If the community disagrees, let the community speak - that's kind of my point. The one definition of rightful copying that I think is ridiculous is the courts' -- especially the highly influential rulings in both Biz Markie and Bridgeport, both of which contain language that runs directly counter to the reality of sampling culture. To assert that the rule "get a license or do not sample" does not "hamper creativity in any significant way" is absurd.

Re: Re: Re: Re: Re: Re:

...to be dealt with culturally, through the "frowning upon". That's my point. Do some people get screwed? Yes, but not as many as get screwed by copyright. Better to let the culture deal with it. As you say, the culture frowns on biting - in fact in can generate quite a shitstorm.

And yet Greg Gillis is hardly a supporter of the way sample licensing works. And Dangermouse has not been sued, but he's had some of his most popular work blocked, with EMI attempting to keep it off the internet. Of course, EMI lost and the art won - why? Not because of the courts - because of the culture, and the social pressure pushing back.

Dangermouse was blocked? I've never had trouble listening to his stuff. And he was subsequently hired, Gnarls Barkley.

And yet the Bridgeport ruling casts a large shadow. Everyone settles. Nobody tests it in court. "Get a license or do not sample" has become the effective rule for commercial work in the majority of cases - and those who violate it risk lawsuits. Jay-Z has been sued. Kanye West has been sued. 50 Cent has been sued. Beastie Boys just got sued.

You just listed quite a few major label artists who are "testing it in court." They haven't settled. Maybe the current legal rule -- did you copy, was it substantial -- isn't so bad.
Nevertheless, it's the definition I stand behind. If the community disagrees, let the community speak - that's kind of my point. The one definition of rightful copying that I think is ridiculous is the courts' -- especially the highly influential rulings in both Biz Markie and Bridgeport, both of which contain language that runs directly counter to the reality of sampling culture. To assert that the rule "get a license or do not sample" does not "hamper creativity in any significant way" is absurd.

And yet, as I pointed out, those rules didn't hamper sampling; it's at an all time high.

There is more sampling now then when the rule you said hampers sampling went into effect.

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Dangermouse was blocked? I've never had trouble listening to his stuff.

Apparently you have no idea what happened when the Grey Album came out, or how the internet made it available on Grey Tuesday. Yes, you've never had trouble. You know why? Because the community stood up and defied the law. Distributing the Grey Album is illegal - and yet it was made widely available. Many were taken down, but more were put up.

Once again, that just proves my point: the law does not match reality, and the community makes these decisions better than the courts.

And yet, as I pointed out, those rules didn't hamper sampling; it's at an all time high.

There is more sampling now then when the rule you said hampers sampling went into effect.

Yes, there's a lot more of a lot of stuff now than there was then - especially hip-hop. That alone does not immediately disprove the fact that the law interferes with creativity. And, once again, a great deal of that sampling is unauthorized. In other words, it exists despite copyright law, and with the constant threat of being shut down by copyright law.

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Apparently you have no idea what happened when the Grey Album came out, or how the internet made it available on Grey Tuesday. Yes, you've never had trouble. You know why? Because the community stood up and defied the law. Distributing the Grey Album is illegal - and yet it was made widely available. Many were taken down, but more were put up.

Yes I am aware of Grey Tuesday. The "community" was backed by plenty of Big Money concerns. And Dangermouse was being courted by the major labels as the few do-nothing c&d letters were being circulated. Dangermouse was signed. He was pivotal under Gnarls Barkley. Would we have heard anything more from him if he was limited to the Grey Album? Or, dare I say it, is it a blessing that a record label invested him and we got to hear his continued output?

Yes, there's a lot more of a lot of stuff now than there was then - especially hip-hop. That alone does not immediately disprove the fact that the law interferes with creativity. And, once again, a great deal of that sampling is unauthorized. In other words, it exists despite copyright law, and with the constant threat of being shut down by copyright law.
Or does it exist in conjunction with copyright? All this music is out there, Dangermouse is signed, Jay-Z is releasing records.

Re: AKA MARCUS CARAB is wrong again.

I'd be willing to bet that, if HD and PH had actually spoekn to Danger Mouse, then there'd be no issues whatsoever. Hell, if they'd remixed it and put an accreditation to the commercial, there'd be no issues.

I agree with Leigh that Danger Mouse has made a faux-pas here, but not one so severe as to undo his positive work.

pizza hut = copyright friendly btw

i see every theatre has a pizza hut ..wonder why....they suddenly use there music as a way to maybe get back at them....they shouldn't sue they should do a video and use pizza hut in a bad way like puking on the pizza with there logo in it...

and showing people maggots that crawl out of the box....
thats how i get even....

Not Hypocrites

I think Dangermouse isn't a hypocrite in this situation. Art is a non-commercial violation of copyright. Advertising is inherently commercial.

Sampling should be allowed when it is done as a method to take a previously released/known song and evoking it as a new transformative work like parody law is allowed. You shouldn't have to ask for permission if you're remaking a song for artistic purposes like we do now with parodies.

But at the same end, musicians/artists have rights to protect their image. They're actually awarded special property rights for their likeness, there was a case where a bette midler impersonator got sued.

Also, copyright should prevent theft of ideas. This is why we don't allow copyright infringement on songs that haven't reached the public. Otherwise big bands could steal from smaller bands and have a monopoly on good songs. I've heard of groups buying the rights to songs written by lesser bands, even using them as ghost-writers, and copyright allows those bands to benefit from the bigger band using their stuff. But at the same time, no one should have to ask the Beatles to remake their songs that everyone knows and has bought.